“What is happening in Sindh? Why are you people so cruel? Looters are plundering the province.” — Justice Gulzar, 2018
From the time he was elevated from the Sindh High Court to the Supreme Court in 2011, Justice Gulzar Ahmed was a man on a mission: to save Sindh from its ‘corrupt’ rulers.
The erstwhile judge was well-suited to the populist impulses of Justice Iftikhar Chaudhry’s court.
Populists present themselves as champions of the people, aggrandising power in their fight against an allegedly corrupt and unrepresentative elite. Just as Justice Chaudhry presented himself as a champion of the people against repressive military and corrupt civilian rulers, Justice Gulzar presented himself as a champion of the people of Sindh against the province's predatory ruling elite.
Yet, unlike Justice Chaudhry’s transformative tenure, Justice Gulzar’s time as chief justice — widely expected to be a period of similar confrontations between the judiciary and the executive — saw fiery exchanges, but few of the dramatic judgements that defined the tenure of his populist predecessors.
So, how should Justice Gulzar’s tenure be assessed?
Justice Gulzar on the bench
The proceedings of public interest litigation (PIL) cases provide Supreme Court judges opportunities to speak openly about their disdain for the executive branch, and all its shortcomings in realising the ‘public interest.’
This is most evident during implementation proceedings, where the court oversees the implementation of its PIL orders. Unconstrained by jurisdictional technicalities or questions of law and legal precedent — and surrounded by reporters — implementation proceedings provide the ideal venue for judges to flex their populist muscles, criticise executive officials for undermining judicial authority or deviating from the court’s stated preferences, dilate on their personal theories about socio-economic issues, and exhibit their prejudices towards political elites.
Justice Gulzar, in his first year as a Supreme Court judge, was assigned to two of the most confrontational implementation benches of the time: the bench overseeing the implementation of the court’s NRO judgement, and the bench overseeing the implementation of the court’s judgement on the law and order situation in Karachi.
In both judgements, the focus of (then) Chief Justice Chaudhry’s ire was the then Pakistan Peoples Party government. During the implementation proceedings for the Karachi (Law and Order) proceedings, Justice Gulzar demonstrated his predilection for populist rhetoric by chastising the corruption and incompetence of the PPP and the institutions under the PPP’s control, stating, “Karachi had become a floodgate for criminals,” and “land grabbing, mutation and conversion were the major reason of poor law and order … in Karachi.”
Over the course of his tenure as a Supreme Court judge, and especially as the Chief Justice of Pakistan, Justice Gulzar’s rhetorical tirades against the PPP governments grew increasingly colourful, and his focus on the issue of land conversion, misappropriation and encroachment, especially in Karachi, came to define his legacy.
In case after case, Justice Gulzar asked the same question: where is the master plan? And he stated his mission in no uncertain terms: “Let me make it clear: This city will be restored to its original master plan.”
Why then was this populist judge so fixated on such a technical document as a city’s “master plan”?
The ‘master plan’
Populists and technocrats both distrust incumbent political parties and the ability of party-run institutions to act in the common good.
Reflective nostalgia is a key feature of populist discourse. Populists make rhetorical appeals to an idealised notion of a formerly great past, lament the ways in which the country and society deviated from the past, blame the current crop of politicians and political institutions for the loss of past grandeur, and then pledge that they will act to restore that past.
Whether it is Justice Gulzar or Prime Minister Imran Khan, there is a shared nostalgia across the centres of power in Pakistan’s hybrid regime for the 1950s and 1960s — especially Ayub Khan’s reign — an imagined past with strong institutions and pristine, planned and depoliticised cities, where generals, judges, technocrats and bureaucrats exercised hegemony, and governance was unsullied by the factionalism and pettiness of mass-based political parties.
Therefore, in Justice Gulzar’s populism, his goal was to ‘save the people of Karachi’ from the corruption and factionalism of the PPP and other political parties, and restore it to its imagined past.
Hence, Justice Gulzar’s romanticisation of the original ‘master plan’ — a technical document from the 1950s, an artefact from an imagined depoliticised past, and a blueprint for the depoliticised city he wished to realise. And for all of Karachi’s problems — whether it was flooding, waste management or security — restoring Karachi to this original ‘master plan’ was the solution.
Was he successful? In a word, no.
The soaring promise of Justice Gulzar’s populist vision repeatedly crashed on the rocks of the radically altered cityscape of Karachi, the structure of political power, and the limits of judicial power.
Karachi is a vastly different city today, and the land of this city has been converted, re-appropriated and resettled through formal and informal processes for decades.
So when Justice Gulzar used the power of his office to restore the city to its original plan, at the expense of the informal settlements of Karachi’s most vulnerable citizens who were rendered homeless, or when he directed the demolition of buildings where middle-class citizens planned lives and invested savings, it’s not the ruling elite who suffered, but everyone else.
Further, political parties were hardly the only culprits in Karachi’s long history of land encroachments, mutations and conversions. Between cantonments, housing societies, and other constructions and acquisitions, the military’s real estate and commercial empire in Karachi is vast and growing.
In 2019, Justice Gulzar took notice of cantonment land being sold to civilians, and military lands being used for commercial purposes, signalling perhaps that he was going to bring the real estate and commercial interests of the military under similar scrutiny.
But during his tenure as chief justice, the disparity between his relentless focus on PPP-run institutions and his evasion of questions pertaining to the powerful military’s interests, commercial or otherwise, became quite obvious.
Later at the end of 2021, Justice Gulzar did resume scrutinising some of the military’s landed and commercial interests, stating that military land, “not being used for defence … will go back to the (civilian) government” but it is unclear whether these orders will be implemented.
As lawyer and columnist Moiz Jaferii points out, a range of important petitions which could have impacted the military’s interests, including the legality of military-run internment centres in KP or the validity of the suspension of General Musharraf’s conviction, remained unlisted and unheard throughout his tenure.
Instead, Justice Gulzar’s obvious contempt for the PPP government in Sindh made him a proponent for limiting provincial discretion on some subjects, often to the benefit of federal institutions.
During hearings pertaining to the government response to the Covid-19 pandemic across Pakistan, Justice Gulzar strongly emphasised uniform policies across the country, criticising the Sindh government for acting independently.
The chief justice also observed that the 18th Amendment did not give provincial governments the power to regulate activities of business entities that pay federal taxes, without the consent of the President. These observations helped chip away at provincial discretion in critical policy areas.
To be fair to Justice Gulzar, he also took important strides in empowering local government institutions, by ordering provincial governments to ensure local body elections are held, and financial, administrative and political powers are devolved to local governmental institutions.
Ultimately, barring the thousands left homeless by his encroachment drive, and his devolution of powers to local governments, Justice Gulzar’s populist mission of restoring Karachi yielded few results, because there is only so much a judge can do to ensure his preferences are implemented.
Government officials can deliberately misconstrue judicial orders, or delay, and evade their implementation.
Justice Gulzar, from his bench, would repeatedly threaten state officers with contempt of court, but rarely followed through. He would implore the Sindh government to step down, but his threats largely remained hollow.
Perhaps that is why, for all the sound and fury of Justice Gulzar’s oral court proceedings, his actual orders did very little to threaten the Sindh government, as he was limited by the public support for his actions, the configuration of power in the political system, and the institutional limitations on judicial power.
Judging in a hybrid regime
Yet, for better or for worse, Justice Gulzar’s populist predecessors, Justice Chaudhry and Justice Nisar, were able to intervene in political and policymaking processes, select and overturn political appointments, and realise their own policymaking preferences in different areas of governance. Why could Justice Gulzar not do the same?
First, the PPP and PML-N governments that Justices Chaudhry and Nisar confronted were both at odds with the military establishment, placing the judiciary on the right side of the establishment during its confrontations with executive power.
However, in a hybrid regime structure with a powerful military and a likeminded ruling party running the executive, the cost of challenging the federal executive was greater. There were also growing concerns during his tenure that executive institutions were influencing the work of the Supreme Court — concerns Justice Gulzar vehemently rejected.
Second, an effective populist judge needs a constituency — a receptive audience that cheers on the assertion of judicial power in the interests of the public. Justice Chaudhry assiduously cultivated this support within the bar.
He took up issues that were popular in the bar, joined hands with the lawyers in the lawyers’ movement, and then maintained close ties with influential sections of the bar after his restoration.
Justice Nisar maintained close ties with influential lawyers, particularly within Punjab’s bar associations. However, Justice Gulzar did not cultivate any such constituency within the bar, and often found himself at odds with bar associations.
A key lesson from Chaudhry and Nisar’s tenures was the importance of building a supporting coalition within the bench willing to support and stand by the chief justice.
Justice Chaudhry stood out for his management of the internal politics of the bench, both for how he ensured the backing of the majority of the Supreme Court during his confrontation with General Musharraf, and how he brokered no dissent from judges once he was restored as chief justice.
Similarly, Justice Nisar used his powers and his personal connections to favour and empower a group of fellow judges, who then supported him in his spree of populist jurisprudence.
However, Justice Gulzar’s tenure will be remembered for the growing fragmentation within the judiciary that he seemed unwilling or unable to repair. The clash between two groups of judges over the presidential reference against Justice Qazi Faez Isa brought these schisms out into the open, with judges hurling allegations at each other in the courtroom.
Justice Gulzar, for the most part, stayed away from this dispute, but in selecting judges for various benches, he seemed to favour one group more than the other.
Further, as journalist Hasnaat Malik points out, Justice Gulzar avoided convening meetings that brought together all his fellow judges, or assigning large benches for major constitutional cases, showing that he recognised the fragmentation, but did little to repair it.
As Justice Gulzar continued his mission to restore Karachi to its former glory, his fellow judges elevated from the Sindh High Court appeared less willing to join him, and he was usually accompanied by judges elevated from the Lahore High Court, who had fewer qualms about supporting him in managing Karachi.
Credit should be given to Justice Gulzar for making the Judicial Commission a site for more meaningful deliberations over judicial appointments and promotions.
But questions grew from within the bar and the bench regarding the criteria for appointing and elevating judges, the discretion of the Judicial Commission, and the risks of unwanted external interventions in a system of appointments that lacks clear criteria.
The question of following a norm of seniority when elevating judges from the high courts to the Supreme Court generated considerable debate. Justice Gulzar could have used this opportunity to help establish criteria for the Judicial Commission to follow in considering the elevation of judges, but that was not to be.
Instead, [it seemed that] he tried to force through his choices, without committing to any reform process, further souring relations with the bar, and turning the elevation of Pakistan’s first woman Supreme Court justice into a matter of controversy and division, rather than celebration.
Thus, with federal institutions on the same page, without a supportive constituency in the bar, and without consolidating his authority and support within the judiciary, barring his interventions in the governance of Sindh, and actions in support of religious minorities, Justice Gulzar failed to assert his authority and leave a lasting imprint on Pakistan’s political and judicial system.
Justice Gulzar had a vision for transforming and depoliticising Pakistan’s cities and state institutions, but barring a few ad hoc interventions, he never really had a ‘master plan’ for realising that vision.